An open letter in defense of Yale’s JAG ban

Yale Law School’s non-discrimination policy prevents the U.S. military from participating in the school’s interview programs, because the military discriminates based on sexual orientation. The following is an open letter to William M. Acker, Jr. LAW ’52, a senior U.S. district judge who opposes the school’s policy.

Dear Judge Acker:

I recently learned of your announcement not to hire graduates of Yale Law School. I understand that this is in response to the decision by a federal judge recognizing Yale’s constitutional right to enforce its non-discrimination policy against military recruiters. I confess that I do not know your motivations for this response and can only guess at your reasoning.

I take it that you are not concerned about the practical effects of Yale’s policy (which ran unchallenged for 23 years until 2001). After all, military recruiters are not barred from Yale Law School, nor are they barred from interviewing its students. Any student may request an interview with a JAG officer on her own and schedule it before, after or between interviews arranged through Yale’s Career Development Office. I also take it that you’re not objecting to the assertion — much less the recognition — of federally protected constitutional rights. Certainly no federal judge could disapprove of the obvious respect for the rule of law that this action reflects. I am left to conclude, therefore, that yours is chiefly a symbolic gesture.

You believe, I assume, as a matter of principle that military recruiters should receive as much support from Yale as any other potential employer. Perhaps you are embarrassed, as an alumnus of Yale, that the school has been engaged in a legal battle against the military at a time when our country needs the best women and men it can find to serve. This is no time for academics with a political agenda to stand in the way. After all, if the judiciary is prevented by a doctrine of deference from substituting its judgment for that of the military, what qualifies Yale law professors to challenge the judgment of either? I’m not sure why you target students to express your disapproval of their professors, but I suppose the symbolic ends, in your view, justify the practical means.

While I can appreciate the value in this view, I believe it is outweighed by the value expressed in Yale’s non-discrimination policy. The Yale faculty has decided that all of its students are qualified to make use of their education in any area of law. My professors believe that their African-American students will make excellent attorneys. They believe that their Asian students will make equally good attorneys. As will their female students. And their Muslim students. And their gay, lesbian, bisexual and transgender students. And they are not willing to cede this point. You apparently disagree. Your letter would suggest either a belief that I, as a gay graduate of Yale, will not be qualified to serve as a military attorney, or that the injustice of this particular act of unfair and irrational discrimination does not rise to a level that warrants challenge. Why? When is unfair and irrational discrimination justified? My father served this country, as did both my grandfathers, and I am ready to serve. The Israeli military will have me. And the British military. And the FBI, CIA and NSA. Our troops fought side by side with bisexual and gay women and men from a dozen countries both in Operation Iraqi Freedom and now in Operation Enduring Freedom. And someday, our military will change its policy. But not if institutions like Yale Law School or the federal judiciary are complicit in perpetuating irrational discrimination.

I, like you, will be an alumnus of Yale Law School. We both love our country and support its military. We both believe in the rule of law. But I, unlike you, am proud of my professors’ unwillingness to endorse discrimination, and I am extremely proud of their willingness publicly and collectively to oppose it. I am honored to belong to an institution that led opposition to racial discrimination in law schools. And that denounced the House Committee on Un-American Activities. And that included sexual orientation in its non-discrimination policy in 1978 and fought to defend it in 2005. And I am sure that each time, Yale frustrated any number of critics — possibly federal judges among them.

I regret that our military denies employment to gay people. But I am saddened that a federal judge, with all the distinction of that office, would deny employment to people for their mere association with those who stood up against unfair discrimination. I trust, as a matter of mutual application of principles, that your refusal to hire Yale students applies to students at all schools that begin refusing to assist military recruiters. Or are Yale students marked with a scarlet letter simply because Yale’s was the first faculty to challenge the government? If so, your real message is clear: It is better to be a follower than a leader. All but a few law schools will refuse to assist military recruiters when their constitutional rights have been similarly guaranteed — not because they have the right to do it, but because it’s the right thing to do.